Kant v Australian Information Commissioner

Proposed order 1 7 Proposed order 1 effectively seeks relief in the form of order 1 of Mr Kant's further amended originating application for final relief. 8 By his written submissions dated 24 September 2024, Mr Kant appears to withdraw his request for interlocutory relief in that form. Referring to correspondence that he sent on or around 22 August 2023 (which, it seems, demanded that the AIC do that which he now wishes to compel by order of this court), Mr Kant submitted: …The Respondent doing as the Applicant requested on 22 Aug 2023 is, in prevailing circumstances, of no value to the Applicant and would constitute unnecessary interference with his right of privacy. …Preventing interference with the privacy of the Applicant in the interim, however, requires the Respondent not do as the Applicant requested on 22 Aug 2023 until further notice. 9 Even assuming that I have misunderstood and that proposed order 1 is pressed, it is unclear why Mr Kant would - or, indeed, how the circumstances are such that he properly could - seek the same relief on an interlocutory basis as that which is sought on a final basis in his further amended originating application. There is no cogent reason why proposed order 1 should be made at this stage of the proceeding. 10 On that basis alone, proposed order 1 should and will not be made.

Proposed order 2 11 On 22 November 2023, Mr Kant filed an interlocutory application seeking an injunction and associated orders requiring the AIC to produce "to the Applicant all information about him". On 20 December 2023, a registrar dismissed that application after concluding that it was, in effect, an application for discovery "that really [comprised] a fishing expedition". Mr Kant sought a review of that decision, upon which it was subsequently affirmed: see Kant. 12 Proposed order 2 appears to be another attempt by Mr Kant to compel the AIC make generalised discovery. The proposed order contemplates that that be done in coordination with "government bodies identified in [Mr Kant's] 22 Aug 2023 letter except National Anti-Corruption Commission (NACC)." 13 That letter is contained in the bundle of documents filed by the AIC on 23 February 2024. Relevantly, it states as follows (errors original, emphasis added): Please find, secure, and make discoverable for relevant court proceedings all information about interference, by public officials and persons acting in concert with public officials, with my rights as prescribed by the ICCPR … … I will require this information to establish legal and/or equitable claims. The intended use of relevant information for court proceedings is not to limit the scope of the investigation. Please coordinate on this with: • Tertiary Education Quality and Standards Agency • Australian Health Practitioner Regulation Agency (AHPRA) • Inspector-General of Intelligence and Security (IGIS) • National Anti-Corruption Commission (NACC) • Office of Inspector General, United States • Comcare • Office of the Victorian Information Commissioner (OVIC) As practicable, please also coordinate on this with: • WorkSafe Victoria • Victorian Inspectorate (VI) • Australian Skills Quality Authority (ASQA) Pleas do not coordinate on this with: • IBAC 14 In Trade Practices Commission v CC (New South Wales) Pty Ltd (No 4) (1995) 58 FCR 426, 438, Lindgren J paused to consider the definition of a "fishing expedition" (references omitted): …the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware… What is meant [by the term "fishing expedition"] is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists. 15 It is clear on the face of the 22 August 2023 letter that the scope of the proposed discovery order goes beyond the issues to be determined in this proceeding. Although Mr Kant specifies the government bodies with which he contemplates that the AIC should coordinate the proposed discovery effort, that is not sufficient to avoid the criticism that what is proposed is no more than "fishing". Mr Kant seeks discovery to "establish legal and/or equitable claims". That is, in my view, one of the more obvious examples of what the authorities describe as a "fishing expedition". 16 Proposed order 2 should not be made.

Proposed order 3 17 Proposed order 3 seeks compliance by the AIC with proposed orders 1 and 2, at the election of Mr Kant. As I have already disposed of proposed orders 1 and 2 above, proposed order 3 is unnecessary and will not be made.

Proposed order 4 18 Proposed order 4 seeks to prevent, otherwise than on Mr Kant's application, third parties from intervening in or otherwise being joined as a party to the proceeding. 19 Rule 9.12 of the Federal Court Rules 2011 (Cth) (hereafter, the "FCA Rules") provides as follows: 9.12 Interveners (1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court. (2) The Court may have regard to: (a) whether the intervener's contribution will be useful and different from the contribution of the parties to the proceeding; and (b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish; and (c) any other matter that the Court considers relevant. … 20 A non-party whose interests would be directly affected by a decision in a proceeding is entitled to intervene (or at least to apply to intervene) to protect those interests: see Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37, 38-39 [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). 21 Whether a person ought to apply to the court seeking leave to intervene in proceedings is ultimately a matter for that person. It is not for a current party to proceedings, such as an applicant in Mr Kant, to foreclose upon that right (as proposed order 4 contemplates). In the event that there is, in this matter, an application for leave to intervene, Mr Kant (indeed, both parties) will have the opportunity to make submissions as to whether or not it should be granted. 22 As to the joinder of parties to proceedings, the FCA Rules are just as clear. Where an applicant is entitled to claim relief, each other person jointly entitled must be joined to proceedings as an applicant, or as a respondent in the absence of their consent: r 9.03. A party may apply to the court to join a person who ought to have been joined as a party to proceedings, or whose joinder might be required to enforce judgment, or to ensure final determination of issues in dispute, or to avoid multiplicity of proceedings: r 9.05. 23 A person's entitlement to intervene or join in the present matter is not a subject upon which Mr Kant may globally foreclose. On that basis, it is not appropriate to grant relief in the form of proposed order 4.

Proposed order 5 24 Proposed order 5 seeks a temporary stay of this proceeding, pending further application by Mr Kant. 25 Section 23 of the Federal Court of Australia Act 1976 (Cth) (hereafter, the "FCA Act") confers onto the court a general power to control its own proceedings, which includes the ability to order a stay of proceedings: see Groves v Commissioner of Taxation [2011] FCA 222, [22] (Logan J). 26 Mr Kant seeks a stay of proceedings on the basis that access to his legal information is being "interfered" with. His written submissions outline as follows (emphases original): Interference with the Applicant's access to information, including to legal information, is apparent on examination of the evidence. Since 20 Dec 2023, the Applicant has obtained evidence of interference with his access to legal information at legislation.gov.au. The interference with access to legal information is seen to include alteration of authorities in this proceeding. 27 In an affidavit that Mr Kant affirmed on 26 February 2024, the following is deposed to: On 22 February 2024, I also retrieved a document from [legislation.gov.au]. A true reproduction of the 137th page of the digital document is annexed to this affidavit and labelled "JMK-31". I believe this document is not what it purports to be. 28 The exhibit marked JMK-31 is a single page extracted from the Australian Human Rights Commission Act 1986 (Cth). It is unclear how this single page "is not what it purports to be", or otherwise how it can be relied upon by Mr Kant to make any competent submission in any way to justify a stay of proceedings. 29 Proposed order 5 is unsupported by anything that rises beyond the level of unsubstantiated assertion. It will not be made.

Proposed order 6 30 Proposed order 6 seeks the transfer of this matter to the Supreme Court of Victoria. 31 Rule 27.21 of the FCA Rules empowers the court to transfer proceedings. That rule provides as follows: 27.21 Transfer of proceeding from the Court A party may apply to the Court for an order that a proceeding be transferred to another court. Note 1: Applications may be made under the Jurisdiction of Courts (Cross-vesting) Act 1987. … 32 Section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (the "Cross-vesting Act") provides as follows (emphases original): 5 Transfer of proceedings … (4) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court … (in this subsection referred to as the first court); and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and (B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and (C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and (D) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court. … 33 In Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2022] FCA 1515, Wigney J had occasion to consider the application of s 5(4)(b)(i) of the Cross-vesting Act. His Honour observed as follows (at [12], emphases original): For the purposes of s 5(4)(b)(i), one proceeding is relevant to another where "there is some causal element between the two", or they are "associated or connected" such as where there is "a substantial common question that arises in both": see Commissioner of Taxation v Residence Riverside Proprietary Limited as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720 at [13]-[14], citing [Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248] at [41]; Mattock v Mattock (1989) 97 FLR 112 at 115. Common facts and parties may also be sufficient to satisfy the relationship requirement, although "commonality of facts does not necessarily mean that proceedings are related or arise from other proceedings": Residence Riverside at [14], citing Buckley v Gibbett (1996) 69 FCR 554 at 559. 34 Exhibited to an affidavit that Mr Kant affirmed on 8 March 2024 are court documents filed in proceedings before the Supreme Court of Victoria in which Mr Kant is a plaintiff. Those documents include an originating motion and affidavits of Mr Kant affirmed 9 December 2023 and 15 January 2024. That proceeding is brought against the Commonwealth Inspector General of Intelligence and Security. It concerns allegations of breaches of the Charter of Human Rights and Responsibilities Act 2006 (Vic). 35 This proceeding, by contrast, concerns whether a delegate of the AIC erred in finding that Mr Kant's complaint was not a complaint pursuant to s 36 of the Privacy Act 1988 (Cth). 36 The AIC submits - and I accept - that there is no as-yet-identified legal question or other issue common to the two proceedings. They are not sufficiently associated or connected so as to warrant the transfer of proceedings pursuant to s 5(4)(b)(i) of the Cross-vesting Act. 37 Proposed order 6 should not be made.

Proposed order 7 38 Proposed order 7 seeks the "withdraw[al]" of "directions which limit authorities in this proceeding to those at legislation.gov.au". 39 No such direction exists. Mr Kant's concern appears to arise from comments made at a routine case management hearing convened before a registrar on 20 December 2023. During the course of that hearing, Mr Kant was advised that he could "obtain his legal information in/for this proceeding from legislation.gov.au". 40 The domain "legislation.gov.au" is the internet address for the Federal Register of Legislation. The Register is a free online resource from which can be accessed copies of Commonwealth legislation. The registrar's "direction" was, in truth, no more than an observation that Mr Kant might obtain, at his convenience, such legislation as he might require. 41 No order consistent with the "direction" was made on 20 December 2023 (or thereafter for that matter). Mr Kant may access legal resources from whatever sources he has available to him. 42 Proposed order 7 is unnecessary and will not be made.

Proposed order 8 43 Proposed order 8 seeks that the reasons for judgment on the Application be published. That is the usual course and it will be followed. Proposed order 8 is unnecessary and will not be made.

Proposed order 9 44 Proposed order 9 seeks the reservation of costs on the Application. The Application should and will be dismissed. In the usual course, costs should follow the event. 45 Mr Kant submits that the proceeding is a "test case in the public interest" and relies upon the Legal Services Directions 2017 (Cth) (the "Directions"). In response to that submission, the AIC relies upon s 55ZG(2) of the Judiciary Act 1903 (Cth), which states as follows: 55ZG Compliance with Legal Services Directions … (2) Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney-General. … 46 Mr Kant's reliance upon the Directions is misconceived. There is no basis that justifies deviation from the usual course as to costs. Proposed order 9 will not be made.

disposition 47 Each of the nine orders proposed by Mr Kant is refused. The Application will be dismissed, and Mr Kant should pay the AIC's costs of and pertaining to it. There will be orders to that effect. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.